People v. Magliato

• Decision Date: 08 July 1986
• Citation: 68 N.Y.2d 24,505 N.Y.S.2d 836,496 N.E.2d 856
• Parties: , 496 N.E.2d 856 The PEOPLE of the State of New York, Respondent, v. Frank MAGLIATO, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 836

505 N.Y.S.2d 836

68 N.Y.2d 24, 496 N.E.2d 856

The PEOPLE of the State of New York, Respondent, v. Frank MAGLIATO, Appellant.

Court of Appeals of New York.

July 8, 1986.

Leon B. Polsky, New York City, for appellant.

Robert M. Morgenthau, Dist. Atty. (Arthur G. Weinstein and Mark Dwyer, New York City, of counsel), for respondent.

OPINION OF THE COURT

HANCOCK, Judge.

Conduct intended merely to scare off an assailant or to keep him at bay may place the assailant in such imminent danger of grave bodily injury or death that the conduct, without more, constitutes the "use of deadly physical force" to which the defense of justification applies (see, Penal Law § 10.00[11]; § 35.15). Where such conduct is the basis of a criminal charge and the defendant argues that it was justified by the menacing actions and threats of the assailant, the court must instruct the jury on the elements of the defense of justification set forth in Penal Law § 35.15.

I

Defendant was convicted in a jury trial of depraved indifference murder (Penal Law § 125.25[2] ) for the shooting death of one Giani. The shooting was the culmination of a series of events which began when the station wagon in which Giani was a passenger rammed defendant's Ferrari and sped away. The jury acquitted defendant of intentional homicide (Penal Law § 125.25[1] ) and the lesser included offense of manslaughter in the first degree (Penal Law § 125.20), and the Appellate Division reduced the depraved indifference conviction to manslaughter, second degree (Penal Law § 125.15[1] ). 110 A.D.2d 266, 494 N.Y.S.2d 307. ¹ On this appeal, defendant argues that his allegedly protective conduct in drawing and aiming a loaded and cocked weapon at Giani--but not firing it intentionally--is not governed by the law of justification for the use of deadly physical force (Penal Law § 35.15[2] ). He sought to argue to the jury that his actions in preparing to shoot were a reasoned response to Giani's threatening conduct, and he contends that the court should have permitted him to make such argument without charging the jury on the elements of the statutory defense including, specifically, the duty to retreat (Penal Law § 35.15[2][a] ). For reasons which will appear, we disagree with these contentions. There should be an affirmance.

II

The relevant facts, as related by defendant at trial, are these. On September 6, 1983 defendant's leased Ferrari was struck in the rear while stopped at the intersection of Houston and Wooster Streets in Manhattan in preparation for making a left hand turn. The car which struck him, a Chevrolet station wagon, pulled around and drove off. Defendant, angered, gave chase and overtook the station wagon at the corner of Spring and Thompson where it was blocked by a van. As defendant started to get out of the car, holding a tennis racket given him by his passenger Klaris, Giani stepped out of the station wagon. He was brandishing a "very large black club"--holding it over his head and shaking it. Defendant described him as "ranting and raving and screaming, 'I'm going to kill you, get back in the car, I'm going to kill you, you mother f--, get in the car'. He just went on and on. He was wild, he was crazed."

Defendant reentered his car and pulled around Giani to follow the station wagon. With the Ferrari in pursuit, the station wagon proceeded on an irregular course and returned to Spring Street where Giani was still standing. It passed Giani without stopping and, as defendant drove by, Giani moved to the middle of the street shaking the club, yelling and cursing. Defendant continued behind the station wagon narrowly missing Giani. The station wagon drove off leaving Giani in the street.

Defendant and Klaris, driving about the area in search of a police officer, stopped at defendant's apartment on Mercer Street where defendant went inside to pick up his wallet, car registration and other papers. Upon emerging from his apartment, defendant carried a holstered gun for which he had a permit. En route to the police station to report the incident, defendant saw the station wagon parked on Broome Street between Wooster and West Broadway and stopped to call the police from a telephone booth. As defendant started to cross Broome Street, he heard a shout and saw Giani pulling the club out of the station wagon. Defendant described what happened as Giani started to cross the street in his direction:

"As he was coming at me--I just said 'Oh, my God', and drew my gun and cocked it and held it in front of me.

"I put the hammer back [and] held the gun like this [with two hands clasped together and arms extended] in front of me."

A car passed by Giani, backing him toward the curb. As it did so, the pistol fired. The bullet struck Giani between the eyes. Defendant stated he did not remember pulling the trigger. He panicked, and he and Klaris drove off. Giani died two days later of massive brain damage.

At trial, defendant did not dispute that he drew his weapon and cocked it. However, he contended that his pistol had a hair trigger and that he accidentally exerted enough pressure to fire it. The defense adduced expert testimony describing the operation of a colt .38 pistol such as defendant's. In "single action" position, the shooter manually cocks the hammer, as defendant did here. Only 4 1/2 pounds of pressure are required to move the trigger the remaining .012 to .015 inch. A second defense expert characterized defendant's pistol as having a "hair trigger" in such "single action" position, explaining that the "slightest movement", "extremely light" pressure would cause the weapon to discharge.

At the charging conference, defense counsel stated that he "definitely" did not want the court to charge on the defense of justification under Penal Law § 35.15. Nevertheless, defendant sought to argue that he was justified in drawing the weapon, but not in firing it. The court informed defense counsel that if he made such an argument, the justification defense would be charged.

Defendant argued, in his summation, that the shooting was a tragic accident, but he made no specific argument that the weapon was drawn in self-defense. Accordingly, the People, in their summation, did not argue duty to retreat, and the court did not give a charge on the statutory defense of justification.

III

On this appeal defendant argues that, because he claimed the discharge of his pistol was accidental, and did not claim that he fired it in self-defense, the justification defense is inapplicable. He maintains that justification does not apply to an unintentional crime, and that drawing his pistol did not constitute a "use of deadly physical force" within the meaning of Penal Law § 35.15. These arguments are without merit.

Defendant's contention that the law of justification has no bearing on his conduct, solely because the discharge of his pistol was accidental, requires little comment. It is settled that the defense of justification applies fully to a defendant's risk-creating conduct, even though it had unintended consequences (see, People v. McManus, 67 N.Y.2d 541, 505 N.Y.S.2d 43, 496 N.E.2d 202; People v. Huntley, 59 N.Y.2d 868, 465 N.Y.S.2d 929, 452 N.E.2d 1257). That a defendant causes injury or death, not deliberately, but recklessly or negligently, does not remove his conduct from the scope of Penal Law article 35. As we explained in People v. McManus, supra, 67 N.Y.2d at p. 547, 505 N.Y.S.2d 43, 496 N.E.2d 202), "there is no basis for limiting the application of the defense of justification to any particular mens rea or to any particular crime involving the use of force." Hence, in a prosecution for any "crime involving the use of force, a charge on justification is warranted whenever there is evidence to support it." (Id., at p. 549, 505 N.Y.S.2d 43, 496 N.E.2d 202.) Indeed, in People v. Huntley (supra) we specifically held the defense applicable to a charge of reckless homicide (Penal Law § 125.15[1] ), the very crime at issue here (see also, People v. Torre, 42 N.Y.2d 1036, 399 N.Y.S.2d 203, 369 N.E.2d 759; People v. Rodwell, 100 A.D.2d 772, 474 N.Y.S.2d 45).

Nor, under these circumstances, can we accept defendant's contention that his allegedly defensive drawing of the pistol did not constitute the "use of deadly physical force" and, therefore, that his actions are not governed by Penal Law § 35.15(2). ² "Deadly physical force" is defined in Penal Law § 10.00(11) as that...